Investment Advisers: Beware the Broad Confidentiality Clause

Justin Sher, of Sher Tremonte, writes that investment advisers may rely on confidentiality agreements to protect against the disclosure of an investment thesis or algorithm or simply as a means of keeping investors' affairs private. Indeed, Regulation S-P requires registered investment advisers to take steps to "insure the security and confidentiality of customer records and information." However, in light of recent enforcement measures taken by the SEC, advisers should review their confidentiality agreements—including those with investor clients—to make sure these agreements do not violate SEC Rule 21F-17(a), which prohibits the use of confidentiality agreements to deter whistleblowers.

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